Religion and the American Constitutional Experiment

John Witte, Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties (Westview 1999).

Steven D. Smith offers a thoughtful and thorough review at First Things. To get a taste, here are the first several paragraphs:

John Witte’s book on religious freedom is a work of impressive erudition and formidable complacency. Witte capably surveys the historical developments preceding the First Amendment and supplies a helpful overview of the often neglected period from the adoption of that amendment through the 1940s, when the Supreme Court invaded the field. Later chapters give interesting details on the history of tax exemptions for church property and also furnish a comparative perspective with a quick look at international human rights law. The book contains a wealth of information about, for example, state constitutional provisions and Supreme Court decisions, much of it accessibly presented in appendices. And the chapters summarizing modern establishment and free exercise clause decisions discuss the central cases, accurately on the whole. If the overall presentation here is a bit convoluted, the problem results in part from the fact that it is hard to present in an orderly and sensible way material that is the opposite of orderly and sensible.

Taken as a sort of primer/reference work, in short, this is a useful book to have on the shelf. But the book promises to be more than that. In his introduction, Witte notes that modern developments in religious freedom "have bred not only frustration about the vast inconsistencies of the American experiment but doubts about its very efficacy." Later he describes our situation as one of "acute crisis." Witte proposes to address this crisis by "return[ing] to first principles" in order to reassess those principles in light of the American experience.

This preview raised my hopes, but I misunderstood what Witte had in mind. I thought that by reassessing first principles, Witte meant something like reexamining the basic assumptions that underlie the modern discourse and decisions concerning religious freedom. That sort of reexamination is sorely needed. Instead, Witte vigorously and uncritically acquiesces in the same old assumptions. He gives us more of what we already have too much of.

From the Center for the Study of Law and Religion (of which Witte is the Director) comes this brief description:

This volume offers a novel reading of the American constitutional experiment in religious liberty. The First Amendment, John Witte Jr. argues, is a synthesis of both the theological convictions and the political calculations of the eighteenth-century American founders. The founders incorporated six interdependent principles into the First Amendment -- liberty of conscience, freedom of exercise, equality of faiths, plurality of confessions, disestablishment of religion, and separation of church and state. Both the nuance and the balance of these six principles have often been lost on current interpreters of the First Amendment. Religion and the American Constitutional Experiment urges a return to the principled approach to religious rights, evident both in the American founding era and in the modern international human rights movement. Witte uses these principles to analyze the free exercise and establishment case law of the last two centuries. He then illustrates the virtues of his principled approach through analysis of the thorny contests over tax exemptions for religions and the role of religion in the public school, among others.